The Public Domain and the Impact of New Legislation: Advantages of Copyright Registration

INTRODUCTION

Federal copyright protection in the United States was established by the Constitution and empowered Congress to legislate copyright laws that granted protection to "writings." Since the passage of the first Copyright Act in 1790 that permitted only "maps, charts and books" to be eligible for copyright protection, successive copyright acts, copyright office interpretations and judicial decisions have significantly increased the categories of creative works that are protected by federal copyright law. Today federal copyright law will protect almost all types of creative works as long as the particular work meets the standards promulgated by the Copyright Act. Furthermore, the Copyright Act of 1976 abolished the dual system of copyright protection that had previously consisted of federal and common law protection and replaced it with one system - federal protection.

Copyright protection, with some exceptions , is available for "original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or other wise communicated, either directly or with the aid of a machine or device." The "originality" requirement is generally a relatively easy hurdle to achieve because a work will be deemed original if it was independently created and not copied from another work. The "fixation" requirement will be satisfied once the work has been set in a stable and permanent form such as being in written or audio form.

Copyright protection automatically exists from the moment of creation for any work that satisfies the originality and fixation requirements. However, even though copyright protection automatically exists, and copyright registration is no longer required to protect a published work, there are significant benefits for the copyright owner to copyright register their creative work.

COPYRIGHT REGISTRATION OF THE CREATIVE WORK

Copyright registration is voluntary and may be effected at any time the work is still protected by copyright. The registration process permits the owner of any of the exclusive rights in the copyrighted work to register their work once it has been created. Registration is available for both published and unpublished works. Although registration is not required to establish copyright protection for a creative work, this legal formality when complied with provides the copyright owner with protection that far exceeds the time and cost of obtaining such registration. Registering the copyrighted work is not a very timely, costly or complex process and it can be accomplished by the copyright owner or the owner's agent such as a copyright attorney or copyright registration service.

Regretfully, many copyright owners neglect to obtain copyright registration for their creative works. The reasons for not obtaining copyright registration run the spectrum from "It's not required," "I don't have or want to spend the $30 registration fee," "I don't have the time to complete the registration application," to "I forgot." Although the copyright owner may have spent significant time and expense in creating and/or publishing their creative work their failure to register the copyrighted work, or to register it in a timely manner, may preclude the copyright owner from pursuing specific remedies in the event their work has been copyright infringed.

The copyright owner should register a work in a timely manner for the following reasons. First, in the United States copyright registration is a prerequisite for bringing a copyright infringement lawsuit. A copyright owner cannot proceed with a copyright infringement lawsuit unless the work has been registered. Although a copyright owner might wonder why they should spend the time and money in registering the work before an infringement occurs when they can register the work after it has been infringed such reasoning could prove to be very costly and damaging to the copyright owner. The copyright owner might also be thinking that they would never file a lawsuit for infringement so why should they take the time and spend $30 to register the work. But if a lawsuit ever becomes an eventuality, at a minimum it could cost the copyright owner a significantly higher registration fee to expedite the registration of the work so that the lawsuit could be filed.

The second reason a copyright owner should register a copyrighted work in a timely manner is that the copyright owner will be eligible to receive "statutory damages" and "legal costs and attorneys' fees" from a copyright infringer. A timely manner means that the copyright registration was filed prior to an infringement taking place or within three months from the publication date of the work. If the infringement occurs prior to the effective date of copyright registration or after the three-month grace period then the copyright owner will not be entitled to receive statutory damages and legal costs and attorneys' fees. The effective date of copyright registration is the date when the Copyright Office receives the complete registration application that consists of the application, fee and deposit copies.

The significance of statutory damages is that it permits an award of special damages in a successful infringement lawsuit and negates the duty of the copyright owner to prove actual damages. The reasons why a copyright owner may elect to receive statutory damages rather than actual damages is that in many instances proving actual damages is very difficult or the profits of the infringer are very small. The statutory damages that will be awarded is discretionary and will depend upon how willful and harmful the infringement was - usually the more deliberate and more damaging the infringement the greater the award. Furthermore, the legal costs in any copyright infringement lawsuit, particularly attorneys' fees, are extremely expensive. By registering the work in a timely manner the court also has the discretion to award attorneys' fees and legal costs to the copyright owner.

The third reason why the copyright owner should register a copyrighted work is that the Certificate of Registration serves as prima facie evidence that the work is original and is owned by the registrant of the copyrighted work. This becomes especially important if it becomes necessary for the copyright owner to obtain a preliminary injunction against a copyright infringer, such as the immediate cessation of the distribution of the infringer's work. The presumption of validity will only apply if the work has been registered within five years from the publication date.

In actuality the benefits received from registering a copyrighted work may be even more important than those resulting from a copyright infringement lawsuit. This is because the great majority of copyright infringement matters are settled by the parties and not resolved by a lawsuit. The primary reason why copyright infringement actions are settled is the significant cost in time and money that is involved in such lawsuits. By registering a copyrighted work in a timely manner the copyright owner has the ability to bring the lawsuit at the specific moment it is required. It also permits the copyright owner to send a "cease and desist letter" to the infringer that incorporates demands that are backed-up by the knowledge that a lawsuit could be immediately filed and that the (i) validity of originality and ownership will be presumed, (ii) statutory damages may be awarded, and (iii) legal costs and attorneys' fees may be recovered. When a copyright infringer receives such a cease and desist letter they will frequently accede to the copyright owner's demands without the copyright owner filing a lawsuit.

Recommendation: Register the copyrighted work immediately upon its creation or publication.

COPYRIGHT REGISTRATION PROCEDURES

The registration procedure is not very time consuming, complex or costly but it does require that the applicant take the time to correctly complete the appropriate copyright registration form, pay a non-refundable fee that is presently $30 for each copyright application, and send a deposit copy or copies of the work to the Copyright Office. Once the Copyright Office has approved the copyright registration application the copyright owner will receive a Certificate of Registration. The copyright registration process usually takes from six months to one year, but in an emergency, such as pending litigation, an expedited registration process that requires special fees can be utilized.

Published and unpublished works can be registered. As a general rule all published works that have value should be immediately registered upon their publication. Registration of unpublished works is a more subjective decision because it will depend upon how widely the copyright owner will distribute the unpublished work, the value of the work, and the likelihood that someone will copy it. However, if the copyright owner has any doubts about registering an unpublished work, then to allay any fears and because the registration process is relatively simple and inexpensive the copyright owner should register the unpublished work.

Copyright registration forms may be obtained from the Copyright Office. The type of work being registered will determine which copyright registration form is required. For example, the TX form is used for published and unpublished non-dramatic literary works such as books and computer programs, the PA form is used for published and unpublished works that will be performed before an audience such as plays and screenplays, the SE form is used to register serial publications such as magazines, newspapers, journals and newsletters, the VA form is used for registering pictorial, graphic and sculptural works such as artwork and photographs, and the SR form is used for sound recordings such as tapes and CDs.

The copyright owner may register the copyrighted work on their own or they can employ the services of a copyright attorney or service organization that handles copyright registration matters. The guiding principle on how a particular copyright owner handles the copyright registration procedure should be based on the cost of registering the work but most importantly on insuring that the registration is handled in a timely matter so that the work is protected from its date of publication.


1 The 1976 Copyright Act states that "[i]n no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery ... ." Copyright protection is also not available for works that are not original, works that are not fixed in a tangible medium of expression - such as conversations or speeches that are not written or recorded, facts, utilitarian objects, titles, plots, words and short phrases, and works of the federal government.

2 Copyright Act of 1976, section 102 (a).

3 For most infringements, the court may award no less than $500 or more than $30,000, but if the infringement was willful the court may award up to $100,000. Copyright Act of 1976, section 504 (c) (2).

4 The Copyright Office regulations stipulate the deposit required for each type of work.


Lloyd L. Rich is an attorney practicing publishing and intellectual property law. He can be reached at 1163 Vine Street, Denver, CO 80206. Phone: (303) 388-0291; FAX: (303) 388-0477; E-Mail: rich@csn.net; Web Site: http:// www.publaw.com. Jennifer L. Fountain, a recent graduate of the University of Denver School of Law, provided the research for this article.
This article is not legal advice. You should consult an attorney if you have legal questions that relate to your specific publishing issues and projects.